Rameshwardhari Singh and Another vs Sadho Saran Singh and Another

Das, J.—This application must succeed. The learned Judge who dealt with the application for review thought that he was more or lass bound by the direction of this Court asking him to review the order passed on the 22nd June, 1922; but as a matter of fact there is no direction at all upon him to do any such thing. We took special care to point out that the matter rested entirely with the learned Subordinate Judge. In the course of my judgment I said as follows: "I do not say whether in the circumstances of the case the learned Subordinate Judge would have been right in reviewing the order. That point is not before us and it is not right that we should express our opinion on it; but all that we do say is this, that there was complete power in the Court under Order 47, Rule 1 of the Code to review the order passed by it rejecting the plaint under Order 12, Rule 11(e) of the Civil Procedure Code." [Vide 1923 P. 354 at p. 355 C. 1]

It was urged by Mr. P.K. Sen on behalf of the respondent is that the learned Subordinate Judge exercised his own discretion in the matter and thought that he ought to review the order of the 22nd June, 1922. Now it must be remembered that the learned Judge who heard the application for review was not the Judge who passed the order sought to be reviewed. It is necessary to remember this fact in view of the arguments that have been advanced to us. Now I am quite willing to assume that the learned Judge exercised his own judgment in the matter and that he came to the conclusion that the order of the 22nd June, 1922, was one which, in the circumstances of the case, should be reviewed. Now the only allegation upon which the respondents have succeeded in the Court below is that contained in paragraph 3 of the petition. That paragraph runs as follows: "That a day or two before the date (fixed for payment) the defendant opposite party prohibited Santokhi Mian and others with whom the applicant had arranged to borrow money, from lending money to the applicant and the said Mabajan, therefore, out of fear of the defendants who are wealthy and influential, deceived the applicants in nick of time." Now it is not suggested before us by Mr. P.K. Sen that his clients discovered the facts stated in the third paragraph of the petition after the decree was passed in the case. In fact the petition presented by the respondent on the 22nd June, 1922, abundantly proves that at the date when the order of the 22nd June, was passed the respondents were aware of all the facts which they alleged in the third paragraph of the plaint. That being so, it is necessary to consider whether the respondents have brought themselves within the terms of Order 47, Rule 2 of the Code. As I have said, the learned Judge who entertained the application for review was not the Judge who passed the order of the 22nd June, 1922. That being so, Order 47, Rule 2, applied. That Rule provides as follows: "An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree shall be made only to the Judge who passed the decree or made the order sought to be reviewed."

It was, therefore, not open to the learned Judge, not being the Judge who passed the order sought to be reviewed, to allow the application for review for any sufficient reason that might have been shown by the respondent. They could succeed, if at all, either on the ground that they had discovered new and important matter or evidence which, after the exercise of due diligence was not within their knowledge or could not be produced by them at the time when the decree was passed or on the ground that on account of some mistake or error apparent on the face of the record the decree passed on the 22nd June, 1922, should be reviewed. As I have pointed out, it cannot be urged by the respondents that they made any discovery of new and important matter subsequent to the 22nd June, 1922. Mr. P.K. Sen argues that it is not his case that he was not aware of the fact alleged by him in the third paragraph of the petition of the 22nd June, 1922, but that his case is that the learned Judge refused to consider those matters and the position must be the same as if they were not produced by him at the time when the decree was passed in this case. I am unable to take this view of this very important Clause of Order 47, Rule 1. The words "Or could not be produced by him at the time" must refer to the words which precede, namely, "was not within his knowledge." The whole Clause must, in my opinion, mean that these new important matters which are now alleged by the applicant for review were not within his knowledge and, therefore, could not be produced by him at the time when the decree was passed or the order made. It is conceded that all the facts alleged in the third paragraph of the petition were within the knowledge of the respondents certainly before the decree sought to be reviewed was passed, That being so, I hold that there was no power in the learned Judge of the Court below to review the order of the 22nd June, 1922.

The appeal must accordingly be allowed'' and the order passed by the Court below must be set aside. The appellants are entitled to their costs both here and in the Court below. Hearing fee in this Court ten gold mohurs. No separate order need be passed in the Civil revision case.

Macpherson, J.

I agree.